Stating that the Delhi Electricity Regulatory Commission (DERC) and the Delhi government “permitted a state of ambivalence and indecisiveness” to prevail in respect of the Dadri-II thermal power station, the Delhi High Court has noted that no formal retraction of the 2015 letter communicating surrender of the allocation was conveyed to the Centre. “The petitioners as well as the DERC never raised any objection to that communication,” said Justice Yashwant Varma in an order passed in BSES Rajdhani Power Limited’s petition against Centre’s decision to divert more than 700 MW of power allocated to Delhi from Dadri-II to Haryana. Newsletter | Click to get the day's best explainers in your inbox The court said that at this stage, it fails to find any fault in the union government exercising its power of reallocation. However, the court also noted that Centre did not question or challenge the assertion of BSES Rajdhani or Tata Power Delhi Distribution Limited that they had continued to draw and avail of the power generated by Dadri-II until the decision of reallocation was made. In an order passed on Wednesday, the court said there is an emergent need for an exercise to be undertaken by the Centre to examine, evaluate and balance the interests and requirements of Delhi and Haryana. “This exercise of balancing would necessarily entail evaluation and examination of various factual aspects including the data that may be produced with respect to the demand of respective states, the availability of alternate sources to meet exigencies, the likely cost burden to be borne by respective states and other germane considerations which may have a bearing on the issue,” said the bench. The court has continued its stay order on Centre’s decision to divert the power until a final decision is taken by the Ministry of Power. However, the court asked the Centre to proceed expeditiously, considering the assertion of shortage of power by Haryana. The Delhi government in July 2015 had surrendered its allocated power of 735 MW from Dadri-II. The Centre and NTPC argued that the surrender was final. Haryana, while seeking vacation of the stay order, argued that Delhi in October 2021 sought to renege from the surrender, and further referred to the state’s critical power supply position. BSES had argued that the Centre could not have interfered with a subsisting contract between the power companies and NTPC which is valid till July 30, 2035. The 2015 communication must be viewed in light of the position which prevailed then, which is that Delhi was power surplus, the court was told. The Delhi government had argued that the sudden action of the Ministry of Power to relocate power was unreasonable. The court said that the communications addressed from Delhi side indicate that there was renunciation of Dadri-II allocation and on separate occasions, it was allocated to different states by the Centre from 2015-2020. “The power of the Union to make those allocations was never questioned,” reads the judgment, adding that only in October 2021 letters of DERC and BSES Rajdhani, there was a denial of surrender.
